Bering Sea Arbitration

Bering Sea Arbitration. The important fishery dispute between Great Britain and the United States, which was closed by this arbitration, arose in the following circumstances.

In the year 1867 the United States government had purchased from Russia all her territorial rights in Alaska and the adjacent islands. The boundary between the two powers, as laid down by the treaty for purchase, was a line drawn from the middle of Bering Strait south-west to a point midway between the Aleutian and Komandorski Islands dividing Bering Sea into two parts, of which the larger was on the American side of this line. This portion included the Pribiloff Islands, which are the principal breeding-grounds of the seals frequenting those seas. By certain acts of congress, passed between 1868 and 1873, the killing of seals was prohibited upon the islands of the Pribiloff group and in “the waters adjacent thereto” except upon certain specified conditions. No definition of the meaning of the words “adjacent waters” was given in the act. In 1870 the exclusive rights of killing seals upon these islands was leased by the United States to the Alaska Commercial Company, upon conditions limiting the numbers to be taken annually, and otherwise providing for their protection. As early as 1872 the operations of foreign sealers attracted the attention of the United States government, but any precautions then taken seem to have been directed against the capture of seals on their way through the passages between the Aleutian Islands, and no claim to jurisdiction beyond the three-mile limit appears to have been put forward. On the 12th of March 1881, however, the acting secretary of the United States treasury, in answer to a letter asking for an interpretation of the words “waters adjacent thereto” in the acts of 1868 and 1873, stated that all the waters east of the boundary line were considered to be within the waters of Alaska territory. In March 1886 this letter was communicated to the San Francisco customs by Mr Daniel Manning, secretary of the treasury, for publication. In the same summer three British sealers, the “Carolena,” “Onward” and “Thornton,” were captured by an American revenue cutter 60 m. from land. They were condemned by the district judge on the express ground that they had been sealing within the limits of Alaska territory. Diplomatic representations followed, and an order for release was issued, but in 1887 further captures were made and were judicially supported upon the same grounds. The respective positions taken up by the two governments in the controversy which ensued may be thus indicated. The United States claimed as a matter of right an exclusive jurisdiction over the sealing industry in Bering Sea; they also contended that the protection of the fur seal was, upon grounds both of morality and interest, an international duty, and should be secured by international arrangement. The British government repudiated the claim of right, but were willing to negotiate upon the question of international regulation. Between 1887 and 1890 negotiations were carried on between Russia, Great Britain and the United States with a view to a joint convention. Unfortunately the parties were unable to agree as to the principles upon which regulation should be based. The negotiations were wrecked upon the question of pelagic sealing. The only seal nurseries were upon the Pribiloff Islands, which belonged to the United States, and the Komandorski group, which belonged to Russia. Consequently to prohibit pelagic sealing would have been to exclude Canada from the industry. The United States, nevertheless, insisted that such prohibition was indispensable on the grounds—(1) that pelagic sealing involved the destruction of breeding stock, because it was practically impossible to distinguish between the male and female seal when in the water; (2) that it was unnecessarily wasteful, inasmuch as a large proportion of the seals so killed were lost. On the other hand, it was contended by Great Britain that in all known cases the extermination of seals had been the result of operations upon land, and had never been caused by sealing exclusively pelagic. The negotiations came to nothing, and the United States fell back upon their claim of right. In June 1890 it was reported that certain American revenue cutters had been ordered to proceed to Bering Sea. Sir Julian Pauncefote, the British ambassador at Washington, having failed to obtain an assurance that British vessels would not be interfered with, laid a formal protest before the United States government.

Thereupon followed a diplomatic controversy, in the course of which the United States developed the contentions which were afterwards laid before the tribunal of arbitration. The claim that Bering Sea was mare clausum was abandoned, but it was asserted that Russia had formerly exercised therein rights of exclusive jurisdiction which had passed to the United States, and they relied inter alia upon the ukase of 1821, by which foreign vessels had been forbidden to approach within 100 Italian miles of the coasts of Russian America. It was pointed out by Great Britain that this ukase had been the subject of protest both by Great Britain and the United States, and that by treaties similar in their terms, made between Russia and each of the protesting powers, Russia had agreed that their subjects should not be troubled or molested in navigating or fishing in any part of the Pacific Ocean. The American answer was that the Pacific Ocean did not include Bering Sea. They also claimed an interest in the fur seals, involving the right to protect them outside the three-mile limit. In August 1890 Lord Salisbury proposed that the question at issue should be submitted to arbitration. This was ultimately assented to by the secretary of state, James Gillespie Blaine, on the understanding that certain specific points, which he indicated, should be laid before the arbitrators. On the 29th of February 1892 a definitive treaty was signed at Washington. Each power was to name two arbitrators, and the president of the French Republic, the king of Italy, the king of Norway and Sweden were each to name one. The points submitted were as follows:—(1) What exclusive jurisdiction in the sea now known as Bering Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and exercise prior to and up to the time of the cession of Alaska to the United States? (2) How far were her claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain? (3) Was the body of water now known as Bering Sea included in the phrase “Pacific Ocean,” as used in the treaty of 1825 between Great Britain and Russia, and what rights, if any, in Bering Sea were held exclusively exercised by Russia after the said treaty? (4) Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in Bering Sea east of the water boundary, in the treaty between the United States and Russia of the 30th of March 1867, pass unimpaired to the United States under that treaty? (5) Had the United States any and what right of protection over, or property in, the fur seals frequenting the islands of Bering Sea when such seals are found outside the three-mile limit? In the event of a determination in favour of Great Britain the arbitrators were to determine what concurrent regulations were necessary for the preservation of the seals, and a joint commission was to be appointed by the two powers to assist them in the investigation of the facts of seal life. The question of damages was reserved for further discussion, but either party was to be at liberty to submit any question of fact to the arbitrators, and to ask for a finding thereon. The tribunal was to sit at Paris. The treaty was approved by the Senate on the 29th of March 1892, and ratified by the president on the 22nd of April.

The United States appointed as arbitrator Mr John M. Harlan, a justice of the Supreme Court, and Mr John T. Morgan, a member of the Senate. The British arbitrators were Lord Hannen and Sir John Thompson. The neutral arbitrators were the baron de Courcel, the marquis Visconti Venosta, and Mr Gregers Gram, appointed respectively by the president of the French Republic, the king of Italy, and the king of Norway and Sweden. The sittings of the tribunal began in February and ended in August 1893. The main interest of the proceedings lies in the second of the two claims put forward on behalf of the United States. This claim cannot easily be stated in language of precision; it is indicated rather than formulated in the last of the five points specially submitted by the treaty. But its general character may be gathered from the arguments addressed to the tribunal. It was suggested that the seals had some of the characteristics of the domestic animals, and could therefore be the subject of something in the nature of a right of property. They were so far amenable to human control that it was possible to take their increase without destroying the stock. Sealing upon land was legitimate sealing; the United States being the owners of the land, the industry was a trust vested in them for the benefit of mankind. On the other hand, pelagic sealing, being a method of promiscuous slaughter, was illegitimate; it was contra bonos mores and analogous to piracy. Consequently the United States claimed a right to restrain such practices, both as proprietors of the seals and as proprietors and trustees of the legitimate industry. It is obvious that such a right was a novelty hitherto unrecognized by any system of law. Mr J.C. Carter, therefore, as counsel for the United States, submitted a theory of international jurisprudence which was equally novel. He argued that the determination of the tribunal must be grounded upon “the principles of right,” that “by the rule or principle of right was meant a moral rule dictated by the general standard of justice upon which civilized nations are agreed, that this international standard of justice is but another name for international law, that the particular recognized rules were but cases of the application of a more general rule, and that where the particular rules were silent the general rule applied.” The practical result of giving effect to this contention would be that an international tribunal could make new law and apply it retrospectively. Mr Carter’s contention was successfully combated by Sir Charles Russell, the leading counsel for Great Britain.

The award, which was signed and published on the 15th of August 1893, was in favour of Great Britain on all points. The question of damages, which had been reserved, was ultimately settled by a mixed commission appointed by the two powers in February 1896, the total amount awarded to the British sealers being $473,151.26.